45 Ga. App. 166 | Ga. Ct. App. | 1932
Error is assigned in the judgment of the trial court sustaining a demurrer to plaintiff’s declaration alleging, substantially, the following facts: Jasper Sewell, twelve years of age, while playing with other children upon a vacant lot in Atlanta, near his home, was seriously injured by an explosion of the gasoline tank of a motor-driven street-grading machine stored on the playground by the city’s employees. The lot was used generally by children as a plajrground. The grading machine was equipped with a seat, wheels, handles, blades, shafts, scrapers, and other parts, variously and brightly colored, creating an attraction and attractive instrument to children, and by its novelty and attractiveness tended to attract and allure them to, upon, under, and about the same. Its gasoline tank, with a capacity of thirty gallons, was defective, and gradually leaked and sprayed gasoline and oil left therein in such quantities and fashion as was unnoticeable by petitioner, but was known to the defendant’s agents, or could have been known by them by the exercise of ordinary care. The machine was neither guarded nor placarded as dangerous. While plaintiff and other children were playing about the machine, with darkness approaching, one of them lost a marble near-by, and struck a match in an effort to find the marble. The resulting explosion caused the plaintiff’s injuries. Notice of the pertinent facts is charged or imputed to defendant, and negatived on the part of the plaintiff. Negligence is charged, and notice of claim is alleged.
The facts alleged are insufficient to invoke the doctrine of liability for maintenance of an attractive nuisance; hence the judgment sustaining the demurrer to the petition was not erroneous. Atlantic Coast Line R. Co. v. Corbett, 150 Ca. (105 S. E. 358).
Judgment affirmed.
